DIVORCE IN ISLAM


Just Divorced

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Divorce in Islam

By Reem Sultan
Reprinted from the Islamic Information Center of America website, iica.org

Divorce in every religion is controversial. On one hand, it brings about the disintegration of family life with consequent unhappiness for the children born of that marriage. On the other hand, dissolution of marriage might be desirable when the spouses can no longer live in harmony and have lost all mutual respect for one another. Continuance of an unhappy marriage breeds hate and disgust and is likely to ruin the emotional well- being of the children, or of the either one of the spouses. Islam tends to take a realistic a sympathetic view of human affairs, and thus stresses on the happiness of both spouses. If a husband and wife cannot live happily together in peace and harmony and are not satisfied with their matrimonial life, in these sense that they have physical, emotional, and sexual problems with each other, the Quran prescribes them “Divorce”, only if the problems are severe.

“If they disagree and must part, Allah (The God) will provide abundance for all from His all reaching bounty. For Allah is He who cares for all and is wise.” (Quran sura 4, aya 130).

However, every attempt should be made to solve these differences, since Islam does not approve of divorce on frivolous grounds. There must be a valid and significant reason for a disruption of this sacred bond to occur.

The Prophet Muhammad (PBUH) said: “Of all the permitted things divorce is the most abominable by God.” and “Marry and do not divorce, undoubtedly the throne of the beneficent Lord shakes due to divorce.”

Before the advent of Islam, divorce was considered to be a frivolous affair by which an angry man could throw his wife out of the house without any valid reason, leaving the unfortunate woman with no recourse to any legal procedure nor any right to maintenance from him. Pagan Arabs used to divorce their wives at any time, arbitrarily. They also used to revoke the divorce, and then pronounce divorce again and repeat the game as many times as they could ‘ They would, at their pleasure, mistreat the wife, and accuse her of adultery, misconduct, or disobedience. Thus smearing her reputation, which would deter other suitors.

In the midst of these customs Islam introduced to mankind a code for life, which laid down rules and regulations that must be followed in order to live a righteous and noble life. If we thoroughly examine these Islamic laws, under the four schools of jurisprudence, we can see that they take into account the different tentative aspects and situations of divorce to guide the Muslim “Ummah” towards a decision that will affect them for rest of their lives.

The legal term for divorce in Islam is “Talaq”. In its literal sense it means “undoing of, or release from a knot”. It is a ten-n used by many Muslim jurists to denote the release of a woman from a marital tie. The process of “Talaq” consists of many, components, which are essential to the proper and valid breakage of a marital bond. As part of this intricate process, the Quran prescribes that, if a man decides to repudiate his wife, he should call two men of justice (preferably Muslims) to witness his action:

“And take for witnesses. Two persons from among you, endued with justice. And establish the evidence.” (Quran sura 65, aya 2)

There are no specific prescribed words in the Quran that are to be used by a husband to pronounce divorce to his wife. However, the words should convey the intention of the husband to dissolve the marriage. It is necessary that he must be of sound mind, not a minor, and be capable of using his own discretion to reach such a decision. Therefore, a divorce pronounced by an insane man or a child is not considered to be valid.

The Prophet Mohammed (PBUH) said: “Any divorce is lawful except the divorce given by a person whose intellect is overpowered.” This leads us to the question of whether divorce is valid if given without proper intention, that is, under the influence of alcohol, or drugs, or in a state of extreme anger, or by way of jest, or even without free choice (if he is under a threat of his life or property). According to the Malikite, Shafites, and Hanbalite school of jurisprudence, such a divorce is invalid and unacceptable in the eyes of Islamic law. However, the Hanifite school, on the contrary, accepts such a divorce and constitutes it to be valid. It is also essential that when a man expresses his intention to annul a marriage, his wife is not to be in her monthly menstrual cycle, since Allah (The God), does not approve of any hasty decision regarding her future to take place in her period of sexual incapacitation.

Thus, once the conditions are met, “Talaq” can fall under two broad categories; “Talaq al Raji”, which is revocable divorce and “Talaq al Bidi”, which is irrevocable divorce.

In “Talaq al Raji”, the husband pronounces “Talaq” once or at the most twice. This is based on the following Quranic injunction:

“A divorce is only permissible twice. After that the parties should either hold together on equitable terms or separate with kindness.” (Quran sura 2, aya 29).

After the first pronouncement, the period of waiting starts immediately. This is an important component in the process of divorce in Islam. It is basically, in this case, a waiting period of three months in which their is abstinence of sexual intercourse between the husband and the wife The purpose of fixing such a long period of waiting is to determine if the wife is pregnant or not, and to encourage attraction in the husband towards the wife. This period gives him an opportunity to reconsider his decision about the divorce. Thus, the husband has the right to exercise “Raja” which is the return of the wife to him. The Holy Quran says:

“And the husband has the better right to take them back in that period if they wish for reconciliation” (Quran sura 4, aya 130).

It suffices just to utter words such as, “I take you back” or to resume sexual relations to constitute reconciliation. According to the Shafites, however, return is not possible without uttering specific wordings. The Malikites, Hanbalites, and the Hanifites, on the contrary, do not require any sort of specific wordings.

Talaq al Raji may take one of the two forms:

“Ahsan” or “Hasan”, “Talaq al Ahsan” is “the most approved” form of Talaq. It is so named because of the approval it received from the Prophet Mohammed (PBUH). “Ahsan” is effected by a single declaration of repudiation, during a woman’s “clean period”, and by subsequent abstention from intercourse with her, during her period waiting. In this period, however, repudiation is revocable and the husband may resume conjugal relations with his wife. Until the period of waiting has expired, the marriage tie is not dissolved. The husband retains marital authority over the wife, and if during this period either party dies the other may inherit. The right to revoke repudiation before waiting expires exists only in the cases where the marriage has been consummated. Repudiation of a wife with whom the marriage has not been consummated is irrevocable.

“Talaq al Hasan”, on the other hand, is a less approved form of divorce. It is so named because it commands a degree less in the approval of the Prophet (PBUH) as compared to “Talaq al Ahsan”. It is effected by three repudiations in three successive “clean periods”. After the first and the second repudiation the situation is the same as in the “Ahsan” form of divorce, that is, the repudiation is revocable. It becomes absolute when the third repudiation has been pronounced or when the period of iddah has expired without revocation of repudiation.

Another category of divorce is “Talaq al Bidi which is irrevocable divorce. It is a form which is not approved or recognized by the Prophet (PBUH). It is effected by three repudiations, which may be pronounced at any time and without definite intervals. Although Islamically this method of divorce is regarded sinful, it is nevertheless recognized as effective and produces the same results as “Talaq al Hasan”.

It is reported that on a certain occasion when news was brought to the Prophet (PBUH), that one of his disciples had divorced his wife, pronouncing the three repudiations (talaqs) at one and the same time, the Prophet stood in anger on his carpet and declared that the man was making a playing of the words of God and made him take back his wife.

Once the “Talaq” process is underway, the question of responsibility of maintenance of the wife arises. The Holy Quran points out in Surat al Talaq:

“Let women in iddah live in the same style as you live, according to your means. Trouble them not in such a way as to make things difficult for them.” (Quran sura 65, aya 6).

Thus the husband’s responsibility for the maintenance of his wife and his children by her, pertains not only when they are living with him, but continues in the event of divorce. There are some selfish people who may mistreat their wives and make their lives miserable after pronouncing divorce while they are still in iddah. This is forbidden. A wife must be provided for in the same standard of living as her husband’s standard. There is still hope of reconciliation, and even if there is not, the parting must still be honorable. According to the Maliki, Hanifi, Hanbali, and Shafii jurists, it is the duty of the husband to provide financial security and accommodation to the wife during her period of waiting, only if the marriage has been consummated.

However, no maintenance is due to a finally divorced woman, nor is she entitled to any past maintenance except under the Shafii school. In fixing the sum to be paid for maintenance, all the schools lay down the rule that the Qadi (Judge) will exercise his discretion considering the rank and circumstances of both the spouses. This principle is based on the following Quranic verse:

“Let the man of means spend according to his means, and the man whose resources are restricted, let him spend according to what Allah has given him. Allah puts no burden on any person beyond what He has given him.” (Quran sura 65, aya 7).

In the event of pregnancy, the Holy Quran imposes additional responsibility. No separation is permissible until after the child is born. Hence she must be properly maintained. As for the child, its nursing, welfare, and similarly, the care of the mother remains the father’s responsibility. All four jurists agree unanimously on this principle, as it is stated in the Holy Quran:

“Mothers shall give suck to their offspring for two whole years, if the father wishes to complete the term, but he shall bear the cost of their food and clothing on equitable terms.” (Quran sura 2, aya 233).

It should be noted that in Islam the wife also has the right to demand of her husband a divorce. However, instead of “Talaq” it is termed “Khul” and in its literal sense it means releasing or removing the dress from the body. This is an appropriate allusion to the verse of the Holy Quran, which says:

“Women are your garment and you are their garment.” (Quran sura 2, aya 182).

The Maliki jurists define “Khul” as “a divorce by giving something in return. According to the Hanifi, Shafii and Hanbali jurists,” it is the end of a marital relationship with consent and with the utterance of the word “Khul”.

The Holy Quran permits a wife to ask for a divorce only on legitimate grounds, such as fears of cruelty or desertion. It states:

“If a wife fears cruelty or desertion on her husband’s part, there is no blame on them if they arrange an amicable settlement between themselves; and such settlement is best.” (Quran sura 4, aya 128).

Thus, when a wife feels that her husband is failing to perform his marital duties, she can obtain her release from the marriage by giving up all or some of the dower she received at the time of her marriage. In consideration of this, the husband agrees to the “khul”, and the divorce is complete. However “Khul” case has to go to court, where the Qadi must first of all ascertain whether the wife really dislikes her husband so much that she cannot live with him anymore. If the court is satisfied, it will fix as compensation anything that it considers proper, and the husband will have to accept this and divorce his wife. All four jurists are generally of the option that the compensation should not exceed the dowry given by the husband at the time of marriage.

Thus, by analyzing the divorce laws, we can see that Islam provides an equal and fair opportunity of the husband and wife to leave a marital relationship that they consider to be detrimental to their well being. These rules and laws that have been laid down by the Holy Quran and sunnah to enables Muslims to make a rational judgment regarding their future. Islam encourages the Muslim “Ummah” to take their time and make an intelligent decision that is free of anger and misunderstanding. It is obviously preferred by Allah that Muslims refrain from divorce and try to live together in peace and tranquillity, since such a choice leads to a healthy family and a healthy Muslim society.

http://www.islamonline.net/servlet/Satellite?pagename=IslamOnline-English-Ask_Scholar/FatwaE/FatwaE&cid=1119503543216

The Woman’s Right to Demand Divorce

Dear sister in Islam, we would like to thank you for your question and the great confidence you place in us. May Allah reward you abundantly for your interest in knowing the teachings of Islam!

Marriage is indeed a sacred bond that brings together a man and a woman by virtue of the teachings of the Qur’an and the Sunnah. Indeed, Allah Almighty describes this relationship is as though one is a garment to the other; “they are a libas (i.e. body cover) for you and you are the same for them” (Al-Baqarah: 187), thus illustrating the closeness, affection, warmth and love of one for the other.

Thus, each partner in this sacred relationship must treat the other beautifully and properly. A man must not divorce his wife to bring harm upon her, as this constitutes an act that demolishes this noble establishment, breaks the woman’s heart, and possibly separates the woman from her children without any reason. Thus, the separation between a man and his wife [without just reason] was considered one of the major and grave sins, and one of the most beloved actions of Satan, as was narrated in a number of hadiths.

Just as a man must never divorce his wife in order to bring harm upon her without reason, it is also forbidden for a woman to ask for a divorce without a sensible reason. However, she is allowed to ask for a divorce for an acceptable reason.

Elaborating on this issue, we’d like to cite for you the words of Sheik Yusuf Al-Qaradawi in his well-known book, The Lawful and the Prohibited in Islam. He writes:

“The woman who cannot bear to live with her husband has the right to free herself from the marriage bond by returning to her husband the mahr (required marriage gift) and gifts he has given her, or more or less than that according to their mutual agreement. It is, however, preferable that he should not ask for more than he has given her. Allah Almighty says: “…And if you (the judges) fear that the two may not be able to keep to the limits ordained by Allah, there is no blame on either of them if she redeems herself (from the marriage tie by returning all or part of the mahr)…” (Al-Baqarah: 229)

The wife of Thabit ibn Qays came to the Prophet (peace and blessings be upon him) and said, “O Messenger of Allah, I do not reproach Thabit ibn Qays in respect of character and religion, but I do not want to be guilty of showing anger to him.” (Her meaning was that although Thabit was a good man, she was unable to get along with him and thus might not be able to show him the respect due to a husband.) The Prophet (peace and blessings be upon him) asked her about what she had received from him. She replied, “A garden.” He asked, “Will you give him back his garden?” “Yes,” she said. The Prophet (peace and blessings be upon him) then told Thabit, “Accept the garden and make one declaration of divorce.” (Reported by al-Bukhari and an-Nasa’i)

It is not permissible for woman to seek divorce from her husband unless she has borne ill-treatment from him or unless she has an acceptable reason which requires their separation. Said the Prophet (peace and blessings be upon him), “If any woman asks her husband for a divorce without some strong reason, the fragrance of the Garden will be forbidden to her.” (Reported by Abu Dawud)”

http://www.islamonline.net/servlet/Satellite?pagename=IslamOnline-English-Ask_Scholar/FatwaE/FatwaE&cid=1119503543230

Divorce Should Be the Final Resort

Marriage is indeed a sacred bond that brings together a man and a woman by virtue of the teachings of the Qur’an and the Sunnah. Thus, each partner in this sacred relationship must treat the other beautifully and properly.

A man must not divorce his wife to bring harm upon her, as this constitutes an act that demolishes this noble establishment, breaks the woman’s heart, and possibly separates the woman from her children without any reason. Thus, the separation between a man and his wife [without just reason] was considered one of the major and grave sins, and one of the most beloved actions of Satan, as was narrated in a number of hadiths. It is also forbidden for a woman to ask for a divorce without a sensible reason.

The Prophet (peace and blessings be upon him) said: “Among lawful things, divorce is most hated by Allah.” (Reported by Abu Dawud) The spouses should avoid divorce as much as possible. If they have difficulties and problems they should try to work out their differences and seek help from their relatives, friends or professional counselors. However, if the differences are irreconcilable then divorce is permissible, but it should be done in a decent manner.

Elaborating on this issue, we’d like to cite for you the words of Sheik Yusuf Al-Qaradawi in his well-known book, The Lawful and the Prohibited in Islam. He writes:

“A husband must be patient with his wife if he sees something in her that he disapproves and dislikes. He should recognize that he is dealing with a human being with natural imperfections, and he should balance her good qualities with her failings. The Prophet (peace and blessings be upon him) said: “Let a believing man not dislike a believing woman. If something in her is displeasing to him, another trait may be pleasing.”

And Allah Almighty says, “…And consort with them in kindness, for if you dislike them, it may be that you dislike something in which Allah has placed much good.” (An-Nisa’: 19)

While on the one hand, Islam requires the husband to be tolerant and patient with what he dislikes in his wife, on the other hand, it commands the wife to try to please her husband as far as her ability and charm allows, and warns her not to let a night pass during which her husband remains angry with her. A hadith states: “There are three (persons) whose prayer does not rise even a single span above their heads: a man leading a congregational prayer while the people hate him, a woman passing the night while her husband is angry with her, and two quarreling brothers.” (Reported by Ibn Majah and by Ibn Hibban in his Sahih)

Because of his natural ability and his responsibility for providing for his family, the man is the head of the house and of the family. He is entitled to the obedience and cooperation of his wife, and accordingly it is not permissible for her to rebel against his authority, causing disruption. Without a captain the ship of the household will flounder and sink. If the husband senses that feelings of disobedience and rebelliousness are rising against him in his wife, he should try his best to rectify her attitude by kind words, gentle persuasion, and reasoning with her. If this is not helpful, he should sleep apart from her, trying to awaken her agreeable feminine nature so that serenity may be restored and she may respond to him in a harmonious fashion. If this approach fails, it is permissible for him to admonish her lightly with his hands, avoiding her face and other sensitive areas. In no case should he resort to using a stick or any other instrument which might cause pain and injury. Rather this should be of the kind which the Prophet (peace and blessings be upon him) once when angry with his servant, said to him: “If it were not for the fear of retaliation on the Day of Resurrection, I would have hit you with this miswak (tooth-cleaning stick).” (Reported by Ibn Sa`d in his Tabaqat)

The Prophet (peace and blessings be upon him) admonished men concerning beating their wives, saying, “None of you must beat his wife as a slave is beaten, and then have intercourse with her at the end of the day.” (Reported by Ahmad; al-Bukhari has something similar to it)

It was reported to the Prophet (peace and blessings be upon him) that some of his Companions beat their wives, whereupon he said, “Certainly those are not the best among you.” (Reported by Ahmad, Abu Dawud and an-Nasa’i and classified by Ibn Hibban and al-Hakim as authentic)

If all of these approaches fail, and the rift between the husband and wife deepens, the matter then devolves on the Islamic society for solution. Two individuals of good will and sound judgment, one from the wife’s and one from the husband’s side, should meet with the couple in order to try to resolve their differences. Perhaps the sincerity of their efforts may bear fruit and Allah may bring about reconciliation between the spouses.

These various approaches are stated by Allah in the following verses: “…And as for those women on whose part you fear stubbornness, (first) admonish them; then refuse to share their beds; and (finally) beat them (lightly). Then if they return to obedience, seek not against them Means (of annoyance); indeed, Allah is Most High, Great. And if you fear breach between the two of them, appoint an arbiter from his family and an arbiter from her family. If they desire to set things aright, Allah will bring about reconciliation between them; indeed, Allah is Knowing, Aware.” (An-Nisa’: 34-35)

If all these efforts fail and every course tried proves to be of no avail, the husband may resort to the final solution permitted by the Shari`ah of Islam. In response to the bitter realities of life, when difficulties cannot be resolved except through the separation of the two parties in an honorable fashion, Islam has made the provision of divorce. Islam has permitted divorce reluctantly, neither liking nor commending it. The Prophet (peace and blessings be upon him) said, “Among lawful things, divorce is most hated by Allah.” (Reported by Abu Dawud)

That a thing is lawful yet detested by Allah means that it is permissible under unavoidable circumstances, when living together becomes torture, mutual hatred is deep-seated, and it becomes difficult for the two parties to observe the limits of Allah and to fulfill their marital responsibilities. In such a situation separation is better, and Allah Almighty says, “But if they separate, Allah will provide for each of them out of His abundance…” (An-Nisa’: 130)”

http://www.islamonline.net/servlet/Satellite?pagename=IslamOnline-English-Ask_Scholar/FatwaE/FatwaE&cid=1119503543232

Divorce during Pregnancy or Menses

“The Prophet (peace and blessings be upon him) said: “The most hateful permissible thing (al-Halal) in the sight of Allah is divorce.” (Reported by Abu Dawud and Ibn Majah) The spouses should avoid divorce as much as possible. If they have difficulties and problems they should try to work out their differences and seek help from their relatives, friends or professional counselors. However, if the differences are irreconcilable then divorce is permissible, but it should be done in a decent manner. The Shari`ah has given us clear guidelines as to what is the proper way of divorce and what is the improper way of divorce.

According to the Sunnah the proper time for divorce is when the wife is not in her menses and the husband has not approached her at all during this “clean condition” (tuhr). During menses sexual intercourse is not permissible. So the wife was free from menses and the husband in spite of the natural desire and permission to have sexual intercourse did not come close to her. If he divorces her during this time, this means that the differences are really serious.

Muslim jurists, however, have differed among themselves on the validity of divorce during menses. Most of the jurists consider divorce during menses valid, although it is undesirable (makruh). This means that if a husband divorced his wife during her menses, he committed something makruh, but his wife is divorced from him.

The divorce during pregnancy is permissible and valid according to all jurists. The reason, probably, is that it is not forbidden to have sexual intercourse with wife during her pregnancy. During pregnancy the husband (or baby’s father) normally has a desire to be close to his wife and wants to see his baby as soon as he/she is born. He also knows that he has to take care of all the expenses of `iddah, pregnancy and after that of childcare.

All these things would naturally discourage him from divorce. But if he still divorces her, then it means that they have serious differences. It is reported in a hadith that Ibn `Umar (may Allah be pleased with him) divorced his wife during her menses. When the Prophet (peace and blessings be upon him) knew about it, he told him to cancel his divorce. The Prophet said, “After her menses are over, he may divorce her when she is “clean” (tahir) or “pregnant” (hamil).” (Reported by Muslim)”

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~ by nursheikha on December 18, 2008.

3 Responses to “DIVORCE IN ISLAM”

  1. In the first part you said that it is not permissable to divorce while pregnant and on the last part you say that it is possible… Is this a combination of many different articles?

  2. Can you go into more detail about if the divorce is out of anger

  3. Can a man divorce his wife without telling her, during her “clean” period? If he does not take any of the afore mentioned steps to work things out, can he divorce his wife? If the wife apologized or asked for forgiveness and the husband gives her the silent treatment, is this haram and can do this?

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